Divisive Diversity at the University of Texas: An Opportunity for the Supreme Court to Overturn Its Flawed Decision in Grutter

By Thompson, Joshua P.; Schiff, Damien M. | Texas Review of Law & Politics, Spring 2011 | Go to article overview
Save to active project

Divisive Diversity at the University of Texas: An Opportunity for the Supreme Court to Overturn Its Flawed Decision in Grutter

Thompson, Joshua P., Schiff, Damien M., Texas Review of Law & Politics


In Grutter v. Bollinger,1 the Supreme Court identified a compelling interest in diversity in higher education. By so doing, the Court sanctioned a new vehicle for universities endeavoring to use race as a (determinative) criterion in university admissions.2 Recently, the Fifth Circuit Court of Appeals heard a challenge to the University of Texas at Austin's (University) admission policy challenging that University's use of race in selecting its students.3 In Fisher v. University of Texas at Austin, the Fifth Circuit held that the University's use of race in selecting its students, which closely mirrored the system held constitutional in Grutter, was also constitutional.4

Fisher has piqued the interest of the legal community. The University, the largest and (arguably) most prestigious public school in Texas,5 has vigorously defended its decision to use racial classifications for selecting its students.6 The plaintiffs, two white female applicants who were denied admission,7 have been represented by nationally-recognized attorneys out of Washington, D. C.8 Moreover, at this intermediate appellate stage, numerous amicus briefs were filed supporting both sides from national sources, including the Asian American Legal Foundation,9 National Association of Scholars,10 Center for Equal Opportunity,11 and Pacific Legal Foundation12 in support of the plaintiffs, and the NAACP,13 Black Student Alliance,14 American Association of State Colleges and Universities,15 and the Asian American Institute16 in support of the University (to name a few). Further, in a highly unusual move at the circuit stage, even the Obama Administration filed an amicus brief supporting the University.17

The implication of such a wide interest in the case is selfevident. Both proponents of racial classifications in university admissions, as well as opponents, view Fisher as having the potential seriously to affect the ability of universities to use race in admissions. While the plaintiffs are seeking review from an en banc panel of the Fifth Circuit at present,18 a petition for writ of certiorari to the Supreme Court is likely to follow.

Given the national interest in Fisher, this article will lay forth the constitutional issues at stake. Part I provides a history of Supreme Court precedent on racial classifications, focusing on the birth of diversity in constitutional law in Bakke,19 and culminating with the elevation of diversity's status to a compelling governmental interest in Grutter. Part II explains Fisher in detail, including the three separate opinions this highly contentious case produced. Part III shows the various ways Fisher can be constitutionally distinguished from Grutter, thereby demonstrating how the Supreme Court can overrule the Fisher Court without overturning Grutter. Part IV, however, advocates for a summary reversal of Grutter based on two serious constitutional implications of the Grutter Court's holding.


Diversity as a compelling interest has a brief, singular appearance in the holdings of the Supreme Court.20 A proper understanding of the Grutter Court's compelling interest holding begins by looking at what did and did not amount to a compelling interest before Grutter. Before a court can begin to apply Grutter prospectively, it must first take a retrospective look at how Grutter arrived at its conclusion and what that conclusion means.

A. Regarding National Security and Past Discrimination

Amidst anti-Japanese sentiment, a World War Two Supreme Court was confronted with an extreme case of governmental discrimination in Korematsu v. United States.21 In Korematsu, the Supreme Court held that national security was a compelling government interest that allowed the United States government to exclude all persons of Japanese ancestry from military zones on the West Coast.22 While Korematsu today is rightly ridiculed for justifying internment of Japanese-Americans based on hysteria and xenophobia, the case remains noteworthy as the first Supreme Court decision to apply strict scrutiny under the Equal Protection Clause to racial classifications.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Divisive Diversity at the University of Texas: An Opportunity for the Supreme Court to Overturn Its Flawed Decision in Grutter


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?